QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE POOLE
| Rachid RAMDA
|- and -
|The Secretary of State for the Home Department
The Government of France
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
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Official Shorthand Writers to the Court)
James Eadie (instructed by Treasury Solicitors) for the Defendant
James Lewis QC and Hugo Keith (instructed by the Crown Prosecution Service) for the Interested Party
Crown Copyright ©
Lord Justice Keene: :
The treatment of Bensaid
"Que s'il est avéré qu'il présentait des ecchymoses, force est de constater que Boualem BENSAID a, lors de son interpellation tenté de s'enfuir et oppesé une violente résistance, de sorte que les policiers interpellateurs ont dû le maîtriser en employand la force strictement nécessaire (D 375), ce qui suffit á expliquer les ecchymoses constatées á compter du 3 novembre 1995"
The attached translation states:
"That if it was true that he did show signs of bruising, it is to be noted that Boualem BENSAID attempted to escape during his arrest and resisted violently, so that the police officers who arrested him had to use the necessary degree of force (D 375) to subdue him, which offers a sufficient explanation for the bruises observed after the 3rd of November 1995."
"In the course of the custody he was seen, at his request by a doctor on two occasions namely at 0025 on 2nd November and at 20.45 on the same day. He was seen by a doctor at the request of the examining magistrate at 21.35 on the 3rd November. He had one interview with an attorney on 4th November between 21.40 and 22.10.
The entire procedure was carried out in strict compliance with the Code of Penal procedure. On the three occasions he was seen by a doctor he was certified fit to be interviewed and the custody was properly authorised by a magistrate. At no time did Boualem Bensaid submit a complaint regarding unfair police treatment."
The Divisional Court's decision
"to the complaint of the lawyer Valerie Dubois or to Dr Becour's report of injuries, both of which are in the dossier."
It also observed that the dossier showed no response at all on the part of the examining magistrate to the "formal complaint of Bensaid's lawyer that Bensaid had been assaulted under questioning" (paragraph 10) and identified as a question on which the Home Secretary had yet to give a properly reasoned response
"whether there was any investigation at all of the original complaint of ill-treatment of Bensaid." (paragraph 24)
"whether the French courts, given the record now available of their later decisions in relation to Bensaid, will now entertain any request by the claimant to exclude Bensaid's confessions."
It is clear that the Divisional Court took the view that, if the answer to that question was in the negative, this might create a risk of an unfair trial of the claimant. The judgment also suggested that it was possible that the question of bad faith might arise in relation to Monsieur Moinard's affidavit. (ibid)
The Secretary of State's decision, April 2005
"7. The Secretary of State cannot make a finding as to whether or not Mr Bensaid was assaulted as alleged. It is not his function to do so. Nor fairly or practically could he do so without live evidence. However, without accepting or concluding that any such assault took place, he proceeds for present purposes on the basis that there is evidence to support the proposition that Mr Bensaid may have been assaulted in French police custody.
8. In that event, the Secretary of State believes the critical issues would be whether the allegation of assault and the legal consequences of any decision on that issue could be raised by Mr Ramda before the French courts; and whether such matters would be dealt with properly and fairly there.
9. Having considered both M Serres' reports (see especially Serres I, Part III (paragraphs 74-146)) and the points made by M Malterre in his 7 April 2004 report, the Secretary of State has concluded as follows:
- The alleged ill-treatment of Mr Bensaid and the legal consequences of any finding of ill-treatment could be raised before the French courts by Mr Ramda (see Serres I/93 for example).
- Mr Ramda would not be precluded from doing so by the fact that Mr Bensaid did not himself properly raise the issue of ill-treatment until too late (see Serres I/98 and 105-112). In this respect, the Secretary of State prefers the analysis of M Serres to the assertion at the end of point 5, page 7, in M Malterre's 7 April 2004 report.
- Mr Ramda could summon and question witnesses, including the doctors who attended Mr Bensaid – see Serres I/99.
The Secretary of State has also concluded that there is no reason to doubt that the French courts would properly and fairly consider the issue and all relevant evidence.
10. The Secretary of State considers that Mr Ramda could invite the French courts to exclude the evidence of Mr Bensaid. The Secretary of State finds compelling in this respect the reply by M Serres to point 6, page 7, of M Malterre's 7 April 2004 report: see II/19 and 21-24. The Secretary of State has concluded the issue would be properly and fairly considered by the French courts which could then be relied upon to take whatever steps they considered necessary to ensure fairness.
11. The foundation for this part of Mr Ramda's case is that exclusion of such evidence if obtained by ill-treatment would be required by Article 6. The Secretary of State notes that, given the unsettled nature of the case law in this respect, this may not be a straightforward issue in the case of evidence obtained from a one person and then used against another person, even if the state involved is the same. However, even if Mr Ramda is correct about the effect of Article 6, the consequence of that would be that the French courts would be bound to exclude the evidence. The ECHR is part of French domestic law and is of superior force. There is nothing to suggest that the French courts would flout the requirements of the ECHR."
"At a general level, he has concluded that Mr Ramda is wanted by those authorities in order to be tried for his alleged part – organising funding and complicity – in a series of terrorist attacks of the most serious kind. There is nothing to suggest that those charges were trumped up or were unsupported by any evidence. Indeed, quite apart from the evidence of Mr Bensaid, it appears from the judgment of the Tribunal Correctionel, for instance, that there is evidence linking Mr Ramda to those involved in the bombings – for example, evidence concerning contacts between Mr Bensaid, phones available to Mr Ramda, and evidence linking Mr Ramda by his fingerprints to the transfer of £5,000 to the account Mr Bensaid indicated had been used to fund bomb manufacture."
More specifically the Secretary of State accepts that M. Moinard was not aware of the true position and did not set out to mislead the English court. On the basis of the French response to his enquiries, he states:
"The inaccuracies appear to have been caused by incomplete reports or details being provided by an office at one remove from the affidavit, the office of the Paris Attorney General. It also appears that these reports are confidential, as administrative correspondence relating to the exercise of a criminal prosecution, and as such cannot be disclosed. The Secretary of State submits that there is no proper basis for concluding that a person or persons at that office were in some way conspiring to mislead the English courts."
As for the steps taken or not taken by the examining magistrate in response to Maitre Dubois' note, the Secretary of State refers to the evidence that investigations, "not particularly formal", did take place and the results communicated to Maitre Dubois. The letter continues:
"It seems from the opinion of M Serres that the appropriate procedure for making a formal complaint was not followed by those representing Mr Bensaid (see Serres I/4-73, especially 53-54 and Serres II/19). However, it is clear that the Juge had power to take steps to investigate allegations of ill-treatment. The use of an inappropriate procedure seems to the Secretary of State to provide a reasonable explanation for the apparent informality of the investigation and for the absence of a record of it on the dossier. In any event, the matter does not appear to have been pursued by Mr Bensaid or by his lawyers until years later, despite it having been open to them to do so much sooner.
It is not clear to the Secretary of State how this aspect supports an allegation of bad faith. Such an allegation would have to be based on Juge Bruguiére in some way deliberately deciding, for an unspecified and improper reason, not to pursue an investigation. It seems to the Secretary of State that it is inherently improbable that a senior and respected judge would act in that way. In any event, it is difficult to see what such improper inaction would have achieved. Mr Bensaid's lawyers could have pursued the matter and called for formal decisions, which could themselves have been appealed. "
Thus the Secretary of State concludes that the extradition requests are genuinely made and that the French authorities have not acted in bad faith.
"There is no basis for concluding that ill-treatment is systemic."
He goes onto refer to a series of protections in French law against such ill-treatment, including the E.C.H.R, and the fact that the claimant could not as a matter of French procedure be interviewed by French police.
"if deportation would violate Article 3 on the facts, such deportation would be contrary to domestic French law because the E.C.H.R is part of French law with superior force."
The Secretary of State's overall conclusion is that it would not be wrong, unjust or oppressive, or a violation of his E.C.H.R rights, to return the claimant to face trial in France.
The Legal Framework
"12(1) Where a person is committed under section 9 above and is not discharged by order of the High Court or the High Court of Judiciary, the Secretary of State may by warrant order him to be returned unless his return is prohibited, or prohibited for the time being, by this Act, or the Secretary of State decides under this section to make no such order in his case.
(2) Without prejudice to his general discretion as to the making of an order for the return of a person to a foreign state, Commonwealth country or colony –
(a) the Secretary of State shall not make an order in the case of any person if it appears to the Secretary of State in relation to the offence, or each of the offences, in respect of which his return is sought, that –
(i) by reason of its trivial nature; or
(ii) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or
(iii) because the accusation against him is not made in good faith in the interests of justice,
it would having regard to all the circumstances, be unjust or oppressive to return him …"
"… a lengthy process of representations and counter-representations is not envisaged by the statute.
What fairness requires in this situation is a proper balance between the basic requirements of justice on the one hand and the manifest intent of the statute on the other that there should not be a lengthy and elaborate trial before the fugitive can be surrendered for trial somewhere else."
Application for an Adjournment
"on the basis of reports from the Paris Attorney General."
"The investigating judge very quickly communicated the findings to the lawyer who wrote the observation note, who had not at the time deemed it necessary to request that any further action be taken."
Elsewhere the response referred to "the acceptance of the lawyer concerned" of the magistrate's findings.
"who recalls that M. Bruguiere did inform her of his conclusion that he had been completely satisfied at the time and that, as a result, no further request for an investigation into the matter was put forward by her." (paragraph 16)
It was argued on behalf of the claimant that he should have the opportunity to comment on both these new matters. It would also be helpful to have the views of a French lawyer on how plausible it was that the officials had simply overlooked Dr Becour's certificate and Maitre Dubois' note.
The Substantive Issues
(a) Bad Faith
"Good faith has to be given a reasonably generous interpretation so that if the proceedings were brought for a collateral purpose or with an improper motive and not for the purposes of achieving the proper administration of justice they would not be regarded as complying with the statutory requirement. Likewise, accusations would not be made in good faith and in the interests of justice if the prosecution deliberately manipulates or misuses the process of the court to deprive the defendant of the protection to which he is entitled by law."
"the accusation against him [the person whose extradition is sought] is not made in good faith in the interests of justice."
It was therefore clearly relevant to the Secretary of State's decision on bad faith that the crimes in which the claimant was accused of being involved had undoubtedly taken place in France and that there was evidence, quite apart from Bensaid's statements, linking the claimant to those involved in the bombings: see the examples given at paragraph 7 of this judgment. That is not to say that the making of deliberately misleading statements by the requesting state may not, in some circumstances, lead to the finding that the request is not made in good faith: that indeed was this court's conclusion in Saifi (see paragraphs 64 and 65 thereof). But it is a relevant part of the context that the alleged crimes had occurred and that there is other evidence pointing towards the claimant's involvement.
(b) The Prospects of a Fair Trial
(c) Risk of Ill-Treatment of Claimant
(i) In France
(ii) In Algeria